2002 Amendments to the Manual for Courts-Martial, United States
Executive Order

By the authority vested in me as President by the Constitution and
the laws of the United States of America, including chapter 47 of title
10, United States Code (Uniform Code of Military Justice, 10 U.S.C.
801-946), and in order to prescribe amendments to the Manual for
Courts-Martial, United States, prescribed by Executive order 12473, as
amended, it is hereby ordered as follows:

Section 1. Thirty days after the date of this Executive Order, the
provisions of Federal Rule of Evidence 415, adopted September 13, 1994,
will no longer be applicable to the Military Rules of Evidence. This
evidentiary rule became applicable to courts-martial on January 6,
1996, pursuant to Military Rule of Evidence 1102.

Sec. 2. The last subparagraph of paragraph 4, of Part I, of the
Manual for Courts-Martial, United States, is amended as follows:

"The Manual shall be identified as "Manual for Courts-Martial,
United States (2002 edition)." Any amendments to the Manual made by
Executive Order shall be identified as "2002" Amendments to the Manual
for Courts-Martial, United States"; "2002" being the year the Executive
Order was signed. If two or more Executive Orders amending the Manual
are signed during the same year, then the second and any subsequent
Executive Orders will be identified by placing a small case letter of
the alphabet after the last digit of the year beginning with "a" for
the second Executive Order and continuing in alphabetic order for
subsequent Executive Orders.".

Sec. 3. Part II of the Manual for Courts-Martial, United States,
is amended as follows:

a. R.C.M. 201(f)(2)(B) is amended to read as follows:

"(i) Upon a finding of guilty, special courts-martial may
adjudge, under limitations prescribed by this Manual, any
punishment authorized under R.C.M. 1003 except death,
dishonorable discharge, dismissal, confinement for more than 1
year, hard labor without confinement for more than 3 months,
forfeiture of pay exceeding two-thirds pay per month, or any
forfeiture of pay for more than 1 year.

"(ii) A bad-conduct discharge, confinement for more than six
months, or forfeiture of pay for more than six months, may not be
adjudged by a special court-martial unless:

"(a) Counsel qualified under Article 27(b) is detailed to
represent the accused; and

"(b) A military judge is detailed to the trial, except in a case
in which a military judge could not be detailed because of
physical conditions or military exigencies. Physical conditions
or military exigencies, as the terms are here used, may exist
under rare circumstances, such as on an isolated ship on the high
seas or in a unit in an inaccessible area, provided compelling
reasons exist why the trial must be held at that time and at that
place. Mere inconvenience does not constitute a physical
condition or military exigency and does not excuse a failure to
detail a military judge. If a military judge cannot be detailed
because of physical conditions or military exigencies, a
bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months, may be adjudged
provided the other conditions have been met. In that event,
however, the convening authority shall, prior to trial, make a
written statement explaining why a military judge could not be
obtained. This statement shall be appended to the record of
trial and shall set forth in detail the reasons why a military
judge could not be detailed, and why the trial had to be held at
that time and place."

b. R.C.M. 701(b)(4) is amended to read as follows:

"(4) Reports of examination and tests. If the defense requests
disclosure under subsection (a)(2)(B) of this rule, upon
compliance with such request by the Government, the defense, on
request of trial counsel, shall (except as provided in R.C.M.
706, Mil. R. Evid. 302, and Mil. R. Evid. 513) permit the trial
counsel to inspect any results or reports of physical or mental
examinations and of scientific tests or experiments made in
connection with the particular case, or copies thereof, that are
within the possession, custody, or control of the defense that
the defense intends to introduce as evidence in the defense
case-in-chief at trial or that were prepared by a witness whom
the defense intends to call at trial when the results or reports
relate to that witness' testimony."

c. R.C.M. 806 is amended by adding at the end the following new
subsection (d):

"(d) Protective orders. The military judge may, upon request of
any party or sua sponte, issue an appropriate protective order,
in writing, to prevent parties and witnesses from making
extrajudicial statements that present a substantial likelihood of
material prejudice to a fair trial by impartial members. For
purposes of this subsection, "military judge" does not include
the president of a special court-martial without a military
judge.".

d. R.C.M. 1001(b)(3)(A) is amended to read as follows:

"(A) In general. The trial counsel may introduce evidence of
military or civilian convictions of the accused. For purposes of
this rule, there is a "conviction" in a court-martial case when a
sentence has been adjudged. In a civilian case, a "conviction"
includes any disposition following an initial judicial
determination or assumption of guilt, such as when guilt has been
established by guilty plea, trial, or plea of nolo contendere,
regardless of the subsequent disposition, sentencing procedure,
or final judgment. However, a "civilian conviction" does not
include a diversion from the judicial process without a finding
or admission of guilt; expunged convictions; juvenile
adjudications; minor traffic violations; foreign convictions;
tribal court convictions; or convictions reversed, vacated,
invalidated or pardoned because of errors of law or because of
subsequently discovered evidence exonerating the accused.".

e. R.C.M. 1003(b)(3) is amended to read as follows:

"(3) Fine. Any court-martial may adjudge a fine in lieu of or in
addition to forfeitures. Special and summary courts-martial may
not adjudge any fine or combination of fine and forfeitures in
excess of the total amount of forfeitures that may be adjudged in
that case. In order to enforce collection, a fine may be
accompanied by a provision in the sentence that, in the event the
fine is not paid, the person fined shall, in addition to any
period of confinement adjudged, be further confined until a fixed
period considered an equivalent punishment to the fine has
expired. The total period of confinement so adjudged shall not
exceed the jurisdictional limitations of the court-martial;"

f. R.C.M. 1003(b)(7) is amended to read as follows:

"(7) Confinement. The place of confinement shall not be
designated by the court-martial. When confinement for life is
authorized, it may be with or without eligibility for parole. A
court-martial shall not adjudge a sentence to solitary
confinement or to confinement without hard labor;".

g. R.C.M. 1004(e) is amended to read as follows:

"(e) Other penalties. Except for a violation of Article 106,
when death is an authorized punishment for an offense, all other
punishments authorized under R.C.M. 1003 are also authorized for
that offense, including confinement for life, with or without
eligibility for parole, and may be adjudged in lieu of the death
penalty, subject to limitations specifically prescribed in this
Manual. A sentence of death includes a dishonorable discharge or
dismissal as appropriate. Confinement is a necessary incident of
a sentence of death, but not a part of it."

h. R.C.M. 1006(d)(4)(B) is amended to read as follows:

"(B) Confinement for life, with or without eligibility for
parole, or more than 10 years. A sentence that includes
confinement for life, with or without eligibility for parole, or
more than 10 years may be adjudged only if at least three-fourths
of the members present vote for that sentence."

i. R.C.M. 1009(e)(3)(B)(ii) is amended to read as follows:

"(ii) In the case of a sentence which includes confinement for
life, with or without eligibility for parole, or more than 10
years, more than one-fourth of the members vote to reconsider;
or".

j. R.C.M. 1103(b)(2)(B)(i) is amended to read as follows:

"(i) Any part of the sentence adjudged exceeds six months
confinement, forfeiture of pay greater than two-thirds pay per
month, or any forfeiture of pay for more than six months or other
punishments that may be adjudged by a special court-martial; or".

k. R.C.M. 1103(c) is amended to read as follows:

"(c) Special courts-martial.

"(1) Involving a bad-conduct discharge, confinement for more
than six months, or forfeiture of pay for more than six months.

The requirements of subsections (b)(1), (b)(2)(A), (b)(2)(B),
(b)(2)(D), and (b)(3) of this rule shall apply in a special
court-martial in which a bad-conduct discharge, confinement for
more than six months, or forfeiture of pay for more than six
months, has been adjudged.

"(2) All other special courts-martial. If the special
court-martial resulted in findings of guilty but a bad-conduct
discharge, confinement for more than six months, or forfeiture of
pay for more than six months, was not adjudged, the requirements
of subsections (b)(1), (b)(2)(D), and (b)(3)(A)-(F) and (I)-(M)
of this rule shall apply.".

l. R.C.M. 1103(f)(1) is amended to read as follows:

"(1) Approve only so much of the sentence that could be adjudged
by a special court-martial, except that a bad-conduct discharge,
confinement for more than six months, or forfeiture of two-thirds
pay per month for more than six months, may not be approved; or".

m. R.C.M. 1104(a)(2)(A) is amended to read as follows:

"(A) Authentication by the military judge. In special
courts-martial in which a bad-conduct discharge, confinement for
more than six months, or forfeiture of pay for more than six
months, has been adjudged and in general courts-martial, except
as provided in subsection (a)(2)(B) of this rule, the military
judge present at the end of the proceedings shall authenticate
the record of trial, or that portion over which the military
judge presided. If more than one military judge presided over
the proceedings, each military judge shall authenticate the
record of the proceedings over which that military judge
presided, except as provided in subsection (a)(2)(B) of this
rule. The record of trial of special courts-martial in which a
bad-conduct discharge, confinement for more than six months, or
forfeiture of pay for more than six months, was not adjudged
shall be authenticated in accordance with regulations of the
Secretary concerned."

n. R.C.M. 1104(e) is amended to read as follows:

"(e) Forwarding. After every court-martial, including a
rehearing and new and other trials, the authenticated record
shall be forwarded to the convening authority for initial review
and action, provided that in case of a special court-martial in
which a bad-conduct discharge or confinement for one year was
adjudged or a general court-martial, the convening authority
shall refer the record to the staff judge advocate or legal
officer for recommendation under R.C.M. 1106 before the convening
authority takes action.".

o. R.C.M. 1106(a) is amended to read as follows:

"(a) In general. Before the convening authority takes action
under R.C.M. 1107 on a record of trial by general court-martial
or a record of trial by special court-martial that includes a
sentence to a bad-conduct discharge or confinement for one year,
that convening authority's staff judge advocate or legal officer
shall, except as provided in subsection (c) of this rule, forward
to the convening authority a recommendation under this rule.".

p. R.C.M. 1107(d)(4) is amended to read as follows:

"(4) Limitations on sentence based on record of trial. If the
record of trial does not meet the requirements of R.C.M.
1103(b)(2)(B) or (c)(1), the convening authority may not approve
a sentence in excess of that which may be adjudged by a special
court-martial, or one that includes a bad-conduct discharge,
confinement for more than six months, forfeiture of pay exceeding
two-thirds pay per month, or any forfeiture of pay for more than
six months.".

q. R.C.M. 1107(d) is amended by adding at the end the following
new paragraph:

"(5) Limitations on sentence of a special court-martial where a
fine has been adjudged. A convening authority may not approve in
its entirety a sentence adjudged at a special court-martial when,
if approved, the cumulative impact of the fine and forfeitures,
whether adjudged or by operation of Article 58b, would exceed the
jurisdictional maximum dollar amount of forfeitures that may be
adjudged at that court-martial.".

r. R.C.M. 1109(e) and (e)(1) are amended to read as follows:

"(e) Vacation of a suspended special court-martial sentence
wherein a bad-conduct discharge or confinement for one year was
not adjudged.

"(1) In general. Before vacating the suspension of a
special court-martial punishment that does not include a
bad-conduct discharge or confinement for one year, the special
court-martial convening authority for the command in which the
probationer is serving or assigned shall cause a hearing to be
held on the alleged violation(s) of the conditions of
suspension.".

s. R.C.M. 1109(f) and (f)(1) are amended to read as follows:

"(f) Vacation of a suspended special court-martial sentence that
includes a bad-conduct discharge or confinement for one year.

"(1) The procedure for the vacation of a suspended approved
bad-conduct discharge or of any suspended portion of an approved
sentence to confinement for one year, shall follow that set forth
in subsection (d) of this rule.".

t. R.C.M. 1110(a) is amended to read as follows:

"(a) In general. After any general court-martial, except one in
which the approved sentence includes death, and after any special
court-martial in which the approved sentence includes a
bad-conduct discharge or confinement for one year, the accused
may waive or withdraw appellate review.".

u. R.C.M. 1111(b) is amended to read as follows:

"(1) Cases including an approved bad-conduct discharge or
confinement for one year. If the approved sentence of a special
court-martial includes a bad-conduct discharge or confinement for
one year, the record shall be disposed of as provided in
subsection (a) of this rule.

"(2) Other cases. The record of trial by a special court-martial
in which the approved sentence does not include a bad-conduct
discharge or confinement for one year shall be forwarded directly
to a judge advocate for review under R.C.M. 1112. Four copies of
the order promulgating the result of trial shall be forwarded
with the record of trial, unless otherwise prescribed by
regulations of the Secretary concerned.".

v. R.C.M. 1112(a)(2) is amended to read as follows:

"(2) Each special court-martial in which the accused has waived
or withdrawn appellate review under R.C.M. 1110 or in which the
approved sentence does not include a bad-conduct discharge or
confinement for one year; and".

w. R.C.M 1305(d)(2) is amended to read as follows:

"(2) Forwarding to the convening authority. The original and one
copy of the record of trial shall be forwarded to the convening
authority after compliance with subsection (d)(1) of this rule.".

Sec. 4. Part III of the Manual for Courts-Martial, United States,
is amended in Mil. R. Evid. 615 by striking the period at the end of
the rule and adding ", or (4) a person authorized by statute to be
present at courts-martial, or (5) any victim of an offense from the
trial of an accused for that offense because such victim may testify or
present any information in relation to the sentence or that offense
during the presentencing proceedings.".

Sec. 5. Part IV of the Manual for Courts-Martial, United States,
is amended as follows:

"(3) Carnal knowledge with a child under the age of 12 years at
the time of the offense. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for life without
eligibility for parole.".

h. Paragraph 46c(1)(h) is amended by adding at the end the
following new clause:

"(vi) Credit, Debit, and Electronic Transactions. Wrongfully
engaging in a credit, debit, or electronic transaction to obtain
goods or money is an obtaining-type larceny by false pretense.
Such use to obtain goods is usually a larceny of those goods from
the merchant offering them. Such use to obtain money or a
negotiable instrument (e.g., withdrawing cash from an automated
teller or a cash advance from a bank) is usually a larceny of
money from the entity presenting the money or a negotiable
instrument. For the purpose of this section, the term 'credit,
debit, or electronic
transaction' includes the use of an instrument or device, whether
known as a credit card, debit card, automated teller machine
(ATM) card or by any other name, including access devices such as
code, account number, electronic serial number or personal
identification number, issued for the use in obtaining money,
goods, or anything else of value.".

i. Paragraph 51e(1) is amended to read as follows:

"(1) By force and without consent. Dishonorable discharge,
forfeiture of all pay and allowances, and confinement for life
without eligibility for parole.".

j. Paragraph 51e(3) is amended to read as follows:

"(3) With a child under the age of 12 years at the time of the
offense. Dishonorable discharge, forfeiture of all pay and
allowances, and confinement for life without eligibility for
parole."

k. Paragraph 62c is amended to read as follows:

"c. Explanation.

"(1) Nature of offense. Adultery is clearly unacceptable
conduct, and it reflects adversely on the service record of the
military member.

"(2) Conduct prejudicial to good order and discipline or of
a nature to bring discredit upon the armed forces. To constitute
an offense under the UCMJ, the adulterous conduct must either be
directly prejudicial to good order and discipline or service
discrediting. Adulterous conduct that is directly prejudicial
includes conduct that has an obvious, and measurably divisive
effect on unit or organization discipline, morale, or cohesion,
or is clearly detrimental to the authority or stature of or
respect toward a servicemember. Adultery may also be service
discrediting, even though the conduct is only indirectly or
remotely prejudicial to good order and discipline. Discredit
means to injure the reputation of the armed forces and includes
adulterous conduct that has a tendency, because of its open or
notorious nature, to bring the service into disrepute, make it
subject to public ridicule, or lower it in public esteem. While
adulterous conduct that is private and discreet in nature may not
be service discrediting by this standard, under the
circumstances, it may be determined to be conduct prejudicial to
good order and discipline. Commanders should consider all
relevant circumstances, including but not limited to the
following factors, when determining whether adulterous acts are
prejudicial to good order and discipline or are of a nature to
bring discredit upon the armed forces:

"(a) The accused's marital status, military rank, grade, or
position;

"(b) The co-actor's marital status, military rank, grade, and
position, or relationship to the armed forces;

"(c) The military status of the accused's spouse or the spouse of
co-actor, or their relationship to the armed forces;

"(d) The impact, if any, of the adulterous relationship on the
ability of the accused, the co-actor, or the spouse of either to
perform their duties in support of the armed forces;

"(e) The misuse, if any, of government time and resources to
facilitate the commission of the conduct;

"(f) Whether the conduct persisted despite counseling or orders
to desist; the flagrancy of the conduct, such as whether any
notoriety ensued; and whether the adulterous act was accompanied
by other violations of the UCMJ;

"(g) The negative impact of the conduct on the units or
organizations of the accused, the co-actor or the spouse of
either of them, such as a detrimental effect on unit or
organization morale, teamwork, and efficiency;

"(h) Whether the accused or co-actor was legally separated; and

"(i) Whether the adulterous misconduct involves an ongoing or
recent relationship or is remote in time.

"(3) Marriage. A marriage exists until it is dissolved in
accordance with the laws of a competent state or foreign
jurisdiction.

"(4) Mistake of fact. A defense of mistake of fact exists if the
accused had an honest and reasonable belief either that the
accused and the co-actor were both unmarried, or that they were
lawfully married to each other. If this defense is raised by the
evidence, then the burden of proof is upon the United States to
establish that the accused's belief was unreasonable or not
honest.".

l. Paragraph 92e is amended to read as follows:

"e. Maximum punishment. Dishonorable discharge, forfeiture of
all pay and allowances, and confinement for life without
eligibility for parole.".

a. The amendments made to Rules for Courts-Martial 806(d) and
1001(b)(3)(A) shall only apply in cases in which arraignment has been
completed on or after May 15, 2002.

b. The amendments made to Rules for Courts-Martial 1003(b)(7),
1004(e), 1006(d)(4)(B), and 1009(e)(3)(B)(ii) shall only apply to
offenses committed after November 18, 1997. In cases not involving
these amendments, the maximum punishment for an offense committed prior
to May 15, 2002, shall not exceed the applicable maximum in effect at
the time of the commission of such offense. Provided further, that for
offenses committed prior to May 15, 2002, for which a sentence is
adjudged on or after May 15, 2002, if the maximum punishment authorized
in this Manual is less than that previously authorized, the lesser
maximum authorized punishment shall apply.

c. The amendment made to Military Rules of Evidence 615 shall
apply only in cases in which arraignment has been completed on or after
May 15, 2002.

d. Nothing in these amendments shall be construed to make
punishable any act done or omitted prior to May 15, 2002, that was not
punishable when done or omitted.

e. Nothing in these amendments shall be construed to invalidate
any nonjudicial punishment proceeding, restraint, investigation,
referral of charges, trial in which arraignment occurred, or other
action begun prior to May 15, 2002, and any such nonjudicial
punishment, restraint, investigation, referral of charges, trial, or
other action may proceed in the same manner and with the same effect as
if these amendments had not been prescribed.